Citation Nr: 0110660
Decision Date: 04/11/01 Archive Date: 04/23/01
DOCKET NO. 94-13 898 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUE
Entitlement to an increase in a 20 percent rating for a left
ankle disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. A. Saadat, Counsel
INTRODUCTION
The veteran had active military service from August 1965 to
August 1968.
This case comes to the Board of Veterans' Appeals (Board)
from a July 1991 RO rating decision which granted an
increased rating, from 10 percent to 20 percent, for service-
connected postoperative residuals of a left ankle fracture
with traumatic arthritis. The veteran testified before an RO
hearing officer in February 1992. The Board remanded the
case in May 1996 for further development of the evidence.
The Board notes that in February 1999 correspondence the
veteran's representative apparently made a claim for an
increased rating for the veteran's service-connected left
knee condition. That claim is not on appeal and it is
referred to the RO for initial consideration.
FINDING OF FACT
The veteran's postoperative residuals of a left ankle
fracture (including fracture of the distal fibula) with
traumatic arthritis are manifested by malunion of the fibula
with marked ankle disability.
CONCLUSION OF LAW
The criteria for an evaluation of 30 percent for
postoperative residuals of a fracture of the left ankle with
traumatic arthritis have been met. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5262
(2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran had active military service in the Army from
August 1965 to August 1968. Service medical records reflect
that in January 1967 he fell and sustained an open fracture-
dislocation of his left ankle. There was a fracture of the
distal fibula with widening of the ankle mortise. This was
treated with reduction of the dislocation under spinal
anesthesia and debridement of the wound. The veteran also
underwent restoration of the ankle mortise and screw fixation
of the tibiofibular joint of the left ankle. The screw was
removed in February 1967, and by November 1967 the fracture
was described as well healed.
By a May 1976 rating decision, the RO granted service
connection for postoperative residuals of a left ankle
fracture, and assigned a 10 percent rating.
In an August 1990 statement, the veteran requested an
increased rating.
VA medical records reflect that in August 1990, the veteran
sought outpatient treatment for a one month history of pain
and edema of the left ankle. Upon examination, the veteran's
ankle was nontender to touch, but he did have limited
movements which affected his gait. He denied any injury. An
X-ray of the left ankle showed degenerative changes of the
tarsal bones with soft tissue swelling adjacent to the ankle.
In September 1990, the veteran reported that the swelling was
down but that he still limped and could not put pressure on
his foot. Examination of the left foot revealed no pain on
adduction, abduction, inversion or eversion. The veteran
reported feeling pain as he walked and said he could not put
full pressure on his foot. During a January 1991 orthopedic
consultation, it was noted that the veteran still had medial
instability. An X-ray of the left ankle taken in December
1991 revealed an old healed fracture of the left distal
fibula. There were also mild to moderate osteoarthritis
changes noted.
In a May 1991 statement, the veteran indicated that he had
had a continuous problem with his left ankle. He asserted
that in January 1991, he had fallen because of his condition
and, in part, further damaged his ankle. The veteran said
that VA doctors had concluded that he had severe
complications of arthritis. He said that he was using a
permanent brace for his ankle.
The veteran underwent a VA compensation examination in May
1991. It was noted that he had not worked since his January
1991 fall. He had 5 degrees of dorsiflexion of the left
ankle beginning at a right angle and 15 degrees of plantar
flexion beginning at a right angle. When he moved around and
walked, the veteran noted a grating sensation and rubbing.
These symptoms were not present when he took Naprosyn. He
reportedly had no pain at the time of the examination,
because he had taken Naprosyn with relief of his complaints.
There was generalized thickening about the ankle joint.
Scars on the medial surface were nontender, well-healed,
matured, and uninvolved with the underlying tissue.
By a July 1991 rating decision, the RO increased the rating
for postoperative residuals of a left ankle fracture with
traumatic arthritis to 20 percent.
In an August 1991 statement, the veteran asserted that he
felt constant pain and discomfort from his left ankle
disability.
In a substantive appeal dated in November 1991, the veteran
asserted that he was seeking a 30 percent rating because of
an inability to bend his ankle. He said his ankle pointed to
the left when he walked, and that it tended to drag. He said
he was equipped with a permanent metal shoe brace to lift his
foot up when he walked. He also asserted that Naprosyn was
the only source of relief for his symptoms. He said with his
brace he could no longer walk as he once did and was unable
to play with his children without falling down.
VA records reflect that in February 1992 the veteran sought
outpatient treatment for, in part, left ankle symptoms.
The veteran testified before an RO hearing officer in
February 1992. He said that in August 1990, his ankle had
badly swollen and he was in such excruciating pain that he
could not apply any pressure to it. He went to the emergency
room and was given medication for the inflammation and pain.
The veteran further testified that in January 1991 his ankle
gave way and he fell. He said that prior to his fall, he had
worked as a mail handler and personnel trainer for the Postal
Service. He said that he had not worked since his fall. He
said that he wore a brace permanently affixed to his shoe
because of a "drop foot." He stated that he took Naprosyn
twice a day, and said that he was taking larger doses because
it did not compensate for the pain he experienced daily. The
veteran testified that if he sat for any prolonged periods of
time, or upon waking in the morning, it would take him three
or four minutes before he was able to step without his ankle
giving way. He said he could not participate in any
recreational activities with his children, run, or walk for
long periods of time. He stated that even after taking the
medication, he experienced symptoms upon standing on his
ankle or taking long walks.
In March 1992, the veteran underwent a VA examination. He
complained of having pain in the left ankle 24 hours a day,
aggravated by any type of movement. He walked with a brace
supporting the knee and ankle. It was also noted that he
weight approximately 350 pounds, which the examiner noted was
not helpful. The veteran said he took Naprosyn several times
daily. He said he walked about a half a block and could
climb ten stairs, with difficulty. He reported pain awakened
him at night and was especially bad when getting up in the
morning. The veteran said he was virtually immobile. He
also reported having problems getting up after sitting for
short periods of time, such as a half an hour. Upon
examination, the veteran was noted to be wearing a brace on
his left knee and ankle. There was no swelling or erythema,
but there was a deformity of the lower leg above the ankle
from the previous surgical procedure. There was no
subluxation or lateral instability. Dorsiflexion of the left
ankle was to 5 degrees and plantar flexion was to 10 degrees.
By comparison, dorsiflexion of the right ankle was to 10
degrees, and plantar flexion was to 45 degrees. The
diagnosis was postoperative repair of a left ankle fracture.
In April 1992, the veteran sought VA outpatient treatment for
his ankle symptoms. It was noted that his ankle was painful
and swollen, and that the range of motion was limited.
In June 1992, the veteran underwent another VA examination.
He complained of increased pain in the left ankle, and
reported that he was continuing to wear his brace. He had 5
degrees of dorsiflexion and 10 degrees of plantar flexion of
the left ankle, with pain at the terminal ranges of motion.
There was no evidence of joint effusion. The ankle joint was
tender generally and there was thickening about the ankle.
There was also a palpable fracture deformity of the fibula,
approximately five inches above the lateral malleolus. The
veteran reported that this was tender.
VA records reflect that the veteran sought outpatient
treatment for ankle pain in November 1992. Upon examination,
decreased ankle range of motion was noted, with medial and
lateral tenderness.
The veteran underwent another VA examination in January 1993,
during which he continued to complain of ankle pain. He
walked with an antalgic-type gait. His station stance was
otherwise normal. He continued to wear a brace. Range of
motion of the left ankle reflected 0 degrees of dorsiflexion
and 10 degrees of plantar flexion. Subtalar motion of the
left foot was considerably limited as compared with the
opposite side. It was noted that X-rays showed traumatic
arthritis of the left ankle. In reporting diagnosis, the
doctor noted pain, limitation of motion, and deformity due to
post-traumatic arthritis of the left ankle.
VA records reflect that the veteran was seen as an outpatient
in January 1996, requesting documentation concerning his left
ankle brace. It was noted that he had been wearing the brace
since 1991 and it was recommended that he wear it until he
decided to fuse the left ankle.
In May 1996, the Board remanded the veteran's claim for
additional development.
The veteran underwent another VA examination in November
1997. It was noted that he continued to complain of left
ankle pain and swelling, and that pain was always present.
He was not seeking treatment at present. Postoperative scars
on the medial and lateral side of the left ankle were noted.
There were just a few degrees of painful sub-talar motion.
Dorsiflexion was to 0 degrees and plantar flexion was to
about 10 degrees. There was pain on palpation on both the
medial and lateral sides of the ankle. The examiner
concluded that there was moderate functional limitation. An
X-ray revealed an old healed fracture of the distal fibula
and an old ununited avulsion fracture of the medial
malleolus; osteoarthritis was also present in the ankle
joint; and the impression was old post-traumatic changes with
superimposed osteoarthritis.
VA records reflect that during a May 1998 neurological
examination, the veteran was observed as bearing weight on
his right ankle, apparently due to pain in his left ankle.
During a September 1998 private outpatient examination, the
veteran was noted to have 10 degrees of plantar flexion and
13 degrees of talar motion of the left ankle.
The veteran's left ankle was also X-rayed at a private
facility in September 1998. This revealed ossification and
bridging between the tibia and fibular distally. There was
evidence of an old fracture of the distal fibula with
cortical irregularity and increased trabeculation. There was
narrowing of the ankle mortise, degenerative in nature and
possibly posttraumatic. There was no acute fracture or
dislocation present. The impression was old fracture of the
distal fibula with degenerative changes of the ankle mortise.
A September 1998 CT scan of the left ankle revealed osseous
bridging between the distal tibia and fibula. There was
cortical irregularity of the distal fibula consistent with an
old fracture. There were cystic changes of the distal tibia
as well. The tibiotalar joint space was narrowed and
degenerative in nature. There were degenerative spurs of the
talar bone and some cystic changes of the talar bone, which
were degenerative and most likely representing subchondral
cysts. There was narrowing of the tibiotalar and talar
calcaneal joint space with degenerative spurs present. No
fractures or dislocations, nor osteolytic or osteoblastic
lesions, were present. There were no soft tissue masses or
hematomas demonstrated. The impression was old fracture of
the distal fibula with degenerative changes of the tibiotalar
and talar calcaneal joint space with degenerative spurs,
joint space narrowing, and cystic changes.
In January 1999, the veteran underwent another VA
examination. He complained of pain, weakness, and worsened
limitation of motion of the left ankle. He said that he
could hardly walk, and was still using a brace on the ankle.
Examination revealed no swelling or gross deformity of the
left ankle. The veteran walked with an apparently antalgic
limp, also due to restriction of motion. There was no
effusion or local heat. Pedal pulses were good.
Dorsiflexion was active to 10 degrees, and plantar flexion
was to 15 degrees. The doctor said that apparently passive
motion could not be tested because the veteran resisted it.
X-rays of the ankle showed narrowing of the ankle mortise,
distal tibiofibular synostosis and osteophytes with
talofibular (osteofibros fusion) bone fusion. The diagnosis
was severe post-traumatic arthritis of the left ankle.
In a September 1999 memorandum, the VA examiner noted that
range of motion could not be tested properly because the
veteran could not move his ankle and resisted passive range
of motion. The examiner further noted that X-ray did not
show any evidence of bony ankylosis, that endurance could not
be tested because range of motion was not possible, and that
functional ability could not be tested because range of
motion could not be tested properly and the veteran refused
any activity. The examiner further stated that he could not
comment on functional limitation because function could not
be demonstrated.
II. Analysis
The veteran claims he is entitled to a rating higher than 20
percent for his service-connected left ankle disability. The
file shows that the RO has properly developed the evidence on
the claim, and there is no further VA duty to assist the
veteran with his claim. Veterans Claims Assistance Act of
2000, Pub.L. No. 106-475, 114 Stat. 2096 (2000).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A 1155; 38 C.F.R. Part 4.
When rating the veteran's service-connected disability, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Degenerative or traumatic arthritis, established by X-ray
findings, is rated on the basis of limitation of motion of
the joint involved. 38 C.F.R. § 4.71a, Codes 5003, 5010.
Standard ankle motion is 0 degrees to 20 degrees of
dorsiflexion and 0 degrees to 45 degrees of plantar flexion.
38 C.F.R. § 4.71, Plate II.
The veteran's left ankle disability has been rated as 20
percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code
5271, which pertains to limitation of motion of the ankle.
Under this code, the maximum rating is 20 percent, and such
is assigned for marked limitation of ankle motion. The
medical treatment and examination reports from 1990 to 1999
show left ankle arthritis with marked limitation of motion.
The effect of pain on limitation of motion during use or
flare-ups (see 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v.
Brown, 8 Vet. App. 202 (1995)) does not affect the rating in
the instant case, inasmuch as the veteran is currently
assigned the maximum 20 percent rating under the ankle
limitation of motion code. Spencer v. West, 13 Vet.App. 376
(2000); Johnston v. Brown, 10 Vet. App. 80 (1997).
A 30 percent evaluation is warranted under 38 C.F.R. § 4.71a,
Diagnostic Code 5270 for ankylosis of the ankle in plantar
flexion between 30 and 40 degrees or in dorsiflexion between
0 and 10 degrees. An evaluation under this code contemplates
ankylosis of the ankle at certain angles (i.e. that the ankle
is fused at said angles) and not flexion that is limited to
these angles. As noted in the medical records, the left
ankle is able to move, albeit sometimes in a very limited
fashion, and the medical evidence shows the ankle is not
actually ankylosed (fused), let alone ankylosed in a position
which would warrant a higher rating under Code 5270.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of
the tibia and fibula, involving malunion, is rated 20 percent
when there is moderate knee or ankle disability, and is rated
30 percent when there is marked knee or ankle disability.
This code also provides that impairment of the tibia and
fibula, involving nonunion with loose motion requiring a
brace, is rated 40 percent. The veteran's initial injury to
the left ankle included a fracture of the distal fibula.
More recent X-ray and CT scan studies show changes to the
distal left fibula which may be characterized as malunion.
Associated left ankle disability includes severe traumatic
arthritis, minimal ankle motion, pain, use of an ankle brace,
and a limp which appears to be partly due to the ankle
problem. This amounts to a marked left ankle disability
associated with malunion of the fibula. Thus the Board
concludes that a 30 percent rating is warranted for the
condition under Code 5262. The benefit-of-the-doubt rule has
been considered when reaching this decision. 38 U.S.C.A.
§ 5107(b). An even higher rating of 40 percent under Code
5262 is not indicated, since there is no nonunion of the
fibula.
The veteran's left ankle disability also includes a healed
surgical scar. A separate rating may be assigned for a scar
if the scar results in additional impairment (which does not
duplicate impairment compensated by another rating, in
violation of the pyramiding provisions of 38 C.F.R. § 4.14).
Esteban v. Brown, 6 Vet. App. 259 (1994). Under applicable
criteria, a 10 percent evaluation is warranted for
superficial scars that are poorly nourished with repeated
ulceration. 38 C.F.R.
§ 4.118, Diagnostic Code 7803. A 10 percent evaluation is
warranted for superficial scars that are tender and painful
on objective demonstration. 38 C.F.R.
§ 4.118, Diagnostic Code 7804. When the requirements for a
compensable rating under a diagnostic code are not shown, a 0
percent rating is assigned. 38 C.F.R.
§ 4.31. Scars may be evaluated for limitation of functioning
of the part affected. 38 C.F.R. § 4.118, Diagnostic Code
7805. However, a separate scar rating is not warranted in
the instant case. The medical evidence demonstrates that the
veteran's left ankle scar is well-healed, with no signs of
being depressed, adherent, poorly nourished with repeated
ulceration, or tender an painful on objective demonstration.
There also does not appear to be any limitation of left ankle
function as a result of the scar itself. Accordingly, the
Board finds that a separate rating for a scar is not in
order.
In sum, the Board grants an increased rating, to 30 percent,
for the left ankle disability under Code 5262.
ORDER
An increased rating, to 30 percent, for a left ankle
disability is granted.
L. W. Tobin
Member, Board of Veterans' Appeals